Friday, March 22, 2013

Ask any lawyer or law student to name some of the very first cases that they were assigned to read in law school and, almost invariably, one of the answers that you’ll receive will be Marbury v. Madison, 5 U.S. 137 (1803). This case is important to the very framework of our legal system because it was in this case that the Supreme Court determined that it had the right to declare acts of Congress unconstitutional and forms the basis for the judicial review undertaken by federal courts in the more than two hundred years since its decision. It is a basic decision, known to all lawyers, that has been essential to the functioning of our judicial system since shortly after the ratification of the Constitution.

But echoing a viewpoint that is heard, more and more often, from those on the right, Rep. Jim Bridenstine (R-Oklahoma) said in a recent interview that the Supreme Court doesn’t determine what is and isn’t constitutional (partial transcript from ThinkProgress):

Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional. What that means is that that’s what they decided on that particular day given the makeup of the Court on that particular day. And the left in this country has done an extraordinary job of stacking the courts in their favor. So what we have to do as a body of Congress is say, “look, just because the courts” — and I hear this all the time from Republicans — they say that the court is the arbitrator and after the arbitration is done, that’s the rules we have to live under and we can go forth and make legislation given those rules. That’s not the case. A perfect example if Obamacare. Obamacare is not constitutional, the individual mandate.

Let’s unpack this paragraph of nonsense, shall we?

First, as mentioned above, since at least 1803 the rulings of the Supreme Court do determine whether a law is constitutional. It has nothing to do with the makeup of the Court “on that particular day” as Rep. Bridenstine suggests. It has to do with all of the judicial decisions made by the Supreme Court going back to the ratification of the Constitution (and sometimes earlier). That is referred to as precedent. Now, that being said, the Supreme Court does, from time to time, reverse itself, though usually only after the passage of substantial period of time or a material change in circumstances. But changes of that sort don’t occur in a vacuum or without an issue before the Court to adjudicate.

Rep. Bridenstine apparently doesn’t subscribe to the notion that once the Supreme Court decides on the constitutionality of something, that decision becomes the “law of the land” under which future legislation is to be adopted. And his example? Of course, it’s Obamacare. Because in Rep. Bridenstine’s world he, not the Supreme Court, gets to determine whether that law was constitutional. Or, perhaps he means that he and his Republican colleagues get to decide the law’s constitutionality. Of course, that very notion ignores the fact that a majority of Congress passed Obamacare in the first place. Is he suggesting that Congress intentionally passed something that the members of Congress thought was unconstitutional? Or is he just saying that if the minority party (or even a member of the minority party) believes that a law is unconstitutional then it must, in fact, be so?

I’m sure, then, that Rep. Bridenstine would agree that the law articulated by the Supreme Court in Citizens United isn’t really the final word on whether the campaign finance law at issue was constitutional. I mean, given that Congress passed the campaign finance law in question, who is the Supreme Court to say that the law is unconstitutional? Right?

Which brings us to the central fallacy evidenced by Rep. Bridenstine’s idiocy: If the Supreme Court doesn’t determine the constitutionality of a law, who does? Congress? The President? Well, certainly it can’t be left up to Kenyan Muslim Marxist Fascists with with weird names who were elected thanks to ACORN, the New Black Panthers, and union thugs (did I miss any conspiracies?) to determine what is or isn’t constitutional. So it must be the job of Congress. So explain to me just how Congress is to determine that something that it has done is, in fact, unconstitutional? One would presume, wouldn’t one, that Congress thinks that a law it passes is constitutional? Don’t forget that members of Congress swear to uphold the Constitution:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

So I’m trying to imagine the scene where Congress votes to decide whether the law it just passed (and which presumably has been signed by the President) is, in fact, constitutional. And don’t forget that should the minority manage to obtain majority status, it can repeal a law it doesn’t like. But that doesn’t make the original law unconstitutional, does it? I’m so confused…

Moreover, think of the real potential for chaos if Rep. Bridenstine’s idiotic worldview were the basis upon which our system operated. What if Congress passed a law that permitted undocumented immigrants to be held as slaves or outlawed the practice of Islam. What if Congress passed a law that said that people of different races or religions couldn’t marry or that only landowners could vote. One would presume that the Supreme Court would find these sorts of laws to be unconstitutional. But if the Supreme Court doesn’t have that power, then who would stop these sorts of laws from being enforced? It seems unlikely that the Congress that passed the blatantly “unconstitutional” law would then censure itself for having done so in the first place. So what happens when the Supreme Court and Congress disagree? Does each side muster its army and fight it out on the Mall?

You see, Rep. Bridenstine was apparently absent that day in middle school civics when the teacher talked about checks and balances, because his worldview seems to give Congress near carte blanche to do what it wants so long as Congress thinks its actions are constitutional.

Look, I’m not saying that the Supreme Court always gets it right or that I always agree with the Supreme Court (Bush v. Gore, anybody?). But whether we agree or not, whether the Supreme Court is “right” or not, its decisions are, in fact, the law of the land and do, in fact, determine whether statutes are or are not constitutional. Rep. Bridenstine may not like Obamacare, he may think that the mandate is unconstitutional, but the Supreme Court has ruled and the constitutionality of the mandate is no longer in question. If he doesn’t like the law, he can certainly try to change it (the House GOP has already voted to repeal it 39 times…), but working to repeal a law that you don’t like is vastly different than finding the law to be unconstitutional or suggesting that it isn’t really the law of the land.

I also want to address one other allegation Rep. Bridenstine makes:

And the left in this country has done an extraordinary job of stacking the courts in their favor.

Again, recall that his criticism is the current Supreme Court’s decision regarding Obamacare. So, has “the left” stacked the Supreme Court? Well, only if you count either President Reagan, President George H.W. Bush, or President George W. Bush as a part of “the left”. 5 of the 9 justices (a majority, you’ll note) were appointed by those three Republican Presidents. Moreover, at present, Republicans still hold a narrow majority of all federal judicial appointments (5-4 on the Supreme Court, 82-81 on the Courts of Appeal; I don’t have current numbers for District Court judges, but as of late 2010, Republican appointees still held approximately 59% of federal benches). So the idea that “the left” has stacked the courts is simply and demonstrably false. But then we have to remember that Rep. Bridenstine is a Republican, so facts are optional for his worldview and understanding of history and reality. It’s also worth noting that if Senate Republicans hadn’t delayed consideration of President Obama’s judicial nominations, the percentages might be closer still.

You might wonder why the woman interviewing Rep. Bridenstine didn’t correct some of his misunderstandings of facts. Perhaps she doesn’t know. Then again, one would think that a woman who has played prominent roles in Republican policy endeavors (as founder and president of Liberty Central and head of Liberty Consulting) would have some basic understanding of some of these ideas and concepts. And given that she is married to a Supreme Court Justice who was appointed more than 22 years ago, one might think that she would have at least an inkling of how the court works. But I guess Justice Thomas has never explained how the Courts work to his wife Ginni. Such a shame.

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